On February 10, 2020, in Fowler v. City of Lafayette, __ Cal.App.5th __ (2020), the First District Court of Appeal affirmed a trial court decision challenging the City of Lafayette’s approval of a tennis cabana on a residential property.  The petition alleged that the City violated the Ralph M. Brown Act by discussing the application in closed sessions and that the plaintiffs were therefore deprived of their right to a fair hearing.

The plaintiff project opponents, who are neighbors of the project applicants, objected that the cabana was inconsistent with the neighborhood and too close to an adjacent home such that it would subject the occupants to noise and loss of privacy.  They appealed the Design Review Commission’s approval of the project through the City’s administrative hearing processes.  The City Council ultimately denied the appeal and upheld the Planning Commission’s approval of the application on a 4-1 vote.

While the application was pending, the applicant’s attorney threatened to sue the City if it denied the project.  The City Council thereafter discussed that threat in several closed sessions.  But the City never indicated a threat of litigation had been made with respect to the project in the agenda for any of the public meetings.  The agendas simply indicated the City Council would confer with legal counsel in closed session about one case of anticipated litigation, but without indicating the case.

The plaintiffs did not learn about the threatened litigation or that the City Council had discussed the matter in closed sessions until after the project had been approved.  They thus alleged that the City violated the Brown Act by failing to announce or make available for public inspection the statement threatening litigation and by conducting unauthorized and overbroad discussions in closed sessions. In particular, they alleged that subdivisions (e)(2) and (e)(5) of section Government Code 54956.9 applies.

Government Code section 54956.9 is an exception to the Brown Act’s open meeting requirements that allows closed sessions for an agency to “confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation.”  Litigation is considered pending when, among other things, “[a] point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency.”

Subdivision (e) of the Brown Act limits “existing facts and circumstances” in this context to five scenarios, two of which are relevant here:

(2) Facts and circumstances, including, but not limited to, an accident, disaster, incident, or transactional occurrence that might result in litigation against the agency and that are known to a potential plaintiff or plaintiffs, which facts or circumstances shall  be publicly stated on the agenda or announced,” and

“(5) A statement threatening litigation made by a person outside an open and public meeting on a specific matter within the responsibility of the legislative body so long as the official or employee of the local agency receiving knowledge of the threat makes a contemporaneous or other record of the statement prior to the meeting, which record shall be available for public inspection pursuant to Section 54957.5 . . . .”

In the published portions of the opinion, the Court agreed with the City that subdivision (e)(2) applies to events that might themselves give rise to litigation, such as “an accident” or “disaster,” or a “transactional occurrence that might result in litigation.”  The Court rejected the notion that “this language could be stretched to include a threat of litigation based on a pending application . . . .”  But the Court held that subdivision (e)(5), which specifically addresses a public agency’s obligations when a person has threatened litigation outside a public meeting, does apply.  And the Court concluded that the City failed to meet its duty to make the record of the statement threatening litigation “available for public inspection pursuant to Section 54957.5.”

Section 54957.5 directs public agencies to disclose agendas of public meetings and other writings that are distributed to members of a local agency in connection with open meetings.  The City contended its obligation was limited to making the statement available for public inspection at city offices, not to distributing it in the agenda packet broadly available publicly.  But the Court held that the City’s argument was unconvincing and that a record of a litigation threat to be discussed in closed session must be included in the agenda packet made available to the public before a meeting.

The Court also rejected the City’s contention that it can avoid its responsibility to include a record of the threat in the agenda packet by the simple expedient of conveying the threat to the legislative body orally in closed session, rather than in writing.  According to the Court, “the statutory scheme does not allow an agency to thwart its duty of public disclosure in this manner.”  Instead, “a record of the threat should have been included in the agenda packet . . . .”

Despite the plaintiff’s victory on that important point, however, the Court rejected their argument that the project is null and void under Government Code section 54960.1, which authorizes a court to find null and void an action taken in violation of specified portions of the Brown Act.  The action they sought to nullify was the City’s approval of the cabana, which occurred in a properly noticed open session after hearing from all interested parties.  In addition, in reliance on a line of cases in which California courts have consistently determined that a decision will not be invalidated for a violation of the Brown Act without a showing of prejudice which the plaintiffs did not show here, the Court refused to repudiate that rule.

The Court also noted that the seminal due process case, Horn v. County of Ventura, requires notice and a hearing to neighboring landowners only where a city’s land use decisions result in “significant’ or ‘substantial” deprivations of property:

“Here, where there is no basis to conclude the closed sessions were themselves improper, where the merits and demerits of the project were exhaustively debated in multiple City Council meetings, and where there is no indication of how the plaintiffs would have proceeded differently if they had known of the threat, we see no basis for inferring even the possibility of prejudice from the City’s failure to disclose in the meeting packet the applicant’s litigation threat.”


Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use. Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. For more information, visit www.msrlegal.com.